Violet Drury & Ors on behalf of Nanda/Ike Simpson & Ors on behalf of Wajarri Yamatji/ Western Australia/Muggon Copper Pty Ltd
[2013] NNTTA 108
•9 August 2013
NATIONAL NATIVE TITLE TRIBUNAL
Violet Drury & Ors on behalf of Nanda/Ike Simpson & Ors on behalf of Wajarri Yamatji/ Western Australia/Muggon Copper Pty Ltd [2013] NNTTA 108 (9 August 2013)
Application Nos: WO2012/1030, WO2012/1034
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection application
Violet Drury & Ors on behalf of Nanda (WC2000/013) (WO2012/1030)
(Nanda Native Title Party)
- and -
Ike Simpson & Ors on behalf of Wajarri Yamatji – (WC2004/010) (WO2012/1034) (Wajarri Yamatji Native Title Party)
-and-
The State of Western Australia (Government party)
- and -
Muggon Copper Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 9 August 2013
Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – expedited procedure not attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 32, 35, 36, 109, 146, 151, 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 111
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases: Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Butcher Cherel’)
Champion v Western Australia and Another [2005] 190 FLR 362; [2005] NNTTA 1 (1 February 2005) (‘Champion’)
Cyril Barnes and Ors on behalf of the Central Eastern Goldfields People/Western Australia/Copley Pty Ltd [2012] NNTTA 109 (‘Copley’)
Gabriel Hazelbane and Ors on behalf of the Warai and Angwinmil Peoples and Gabriel Hazelbane and Ors on behalf of the Wagiman, Warai and Jawoyn Peoples/Imperial Granite and Minerals Pty Ltd/Northern Territory, [2002] NNTTA 256 (‘Hazelbane’)
Harvey Murray on behalf of the Yilka native title claimants Western Australia/Drew Griffith Money [2011] NNTTA 91 (‘Harvey Murray’)
Karijarri Traditional Lands Association/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 at 32 (‘ASJ Resources’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’)
Merle Forrest and Ors on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (‘Aruma’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker’)
Parker v Western Australia and Others (2008) 167 FCR 340 (‘Parker 2’)
Violet Drury and others on behalf of Nanda People/Western Australia/Giralia Resources NL [2001] NNTTA 38 (‘Violet Drury’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’)
Representative of the Mr Marcus Fort, Yamatji Marlpa Aboriginal Corporation
native title party: Mr Colin McKellar, Yamatji Marlpa Aboriginal Corporation
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representatives of the Mr Ralph McNab
grantee party:
REASONS FOR DETERMINATION
On 16 May 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E09/1959 (‘the proposed licence’) to Muggon Copper Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licence is approximately 76 graticular blocks in size (which equates to approximately 232 square kilometres), located 151 kilometres north east of Kalbarri in the Shire of Murchison. The proposed licence overlaps the Nanda registered native title claim (WC2000/013 – registered from 1 March 2001) by 2.43 per cent and the Wajarri Yamatji registered native title claim (WC2004/010 – registered from 5 December 2005) by 97.57 per cent. No other native title claims or determination areas overlap the proposed licence area.
On 13 September 2012, Violet Drury & Ors on behalf of Nanda (“Nanda native title party’) (WO2012/1030) and Ike Simpson & Others on behalf of Wajarri Yamatji (‘Wajarri Yamatji native title party’) (WO2010/1034) made expedited procedure objection applications to the Tribunal in relation to the proposed licence.
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
Following the first preliminary conference on 16 October 2012, the grantee party requested the matters proceed to inquiry.
Between February 2013 and April 2013 directions were amended a number of times following requests from the native title parties and the Government party.
In accordance with final directions, the Tribunal received the following documents in relation to both matters:
·the Government party’s supporting documents on 15 January 2013;
·the grantee party’s supporting documents on 4 February 2013;
WO2012/1030 only
·the Nanda native title party’s ‘Statement of Contentions of Objectors’ on 21 January 2013
WO2012/1034 only
·the Wajarri Yamatji native title party’s objector’s contentions on 13 March 2013;
·the affidavit of Mr Alan Egan, affirmed on 14 March 2013 (A. Egan Affidavit);
·the affidavit of Mr Gavin Egan, sworn on 13 March 2013 (G. Egan Affidavit); and
·the Government party’s statement of contentions on 19 April 2013; and
·the native title party’s contentions in reply on 3 May 2013.
In relation to WO2012/1030, the Nanda native title party did not submit evidence, instead drawing the Tribunal’s attention to Hazelbane per Prof. D. Williamson QC at [36]:
In summary, the proposed act is one and indivisible (the grant of exploration licence EL 22957), the land or waters with which the section 29 notice is concerned is also one and indivisible area (the licence area), each objector is entitled to object to that act, and each objector is entitled to rely on any credible evidence that arguably shows that in some respect the act fails to attract the expedited procedure when judged by section 237 criteria. In my opinion, whilst it is necessary that the objector has standing as a native title holder with respect to some part of the proposed licence area, it is not necessary that the evidence relied upon by the objector relates to that particular part.
On 20 June 2013, the Tribunal sent all parties a copy of a map dated 26 April 2013 and indicated that it would be relied upon for the determination of this matter.
Section 151(2) of the Act provides that the Tribunal may proceed to determine a matter ‘on the papers’ (that is, without a hearing) unless the issues for determination cannot be adequately determined in the absence of the parties. I have considered the documents and material provided by the parties and I am satisfied that this matter can be determined in this way.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in ‘Maitland Parker’ at [31]–[38], [40]-[41] (see also ‘Parker’ and ‘Parker 2’).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see ‘Little’, in particular [588]-[589]).
Evidence in relation to the proposed act
The Government party has provided: a statement of contentions (in relation to WO2012/1034 only); tengraph plans with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement application; copies of the proposed endorsements and conditions of grant; the instrument of licence and first schedule listing land included and excluded from the grant; and a tengraph quick appraisal for the tenement.
Government party documentation establishes the underlying land tenure of E09/1959 includes:
· Vacant Crown Land (at 20.9 per cent);
· 4 Historical Leases (394/530 at 19.8 per cent, 394/532 at 19.3 per cent, 394/519 at 22.1 per cent and 394/537 at 38.8 per cent);
· A Pastoral Lease 3114/941 (Yallalong) (at 76.6 per cent); and
· 2 Road Reserves (at less than 0.1 per cent).
Documentation establishes that E09/1959 has previously been overlapped by 10 exploration licences, granted between 1997 and 2009 (with between 85.5 per cent overlap and 0.1 per cent overlap), all now surrendered or withdrawn; 10 mineral claims, granted between 1979 and 1981 (with between 0.5 per cent overlap and 0.1 per cent overlap), all now surrendered; and three temporary reserves, granted in 1981 (with between 47.9 per cent overlap and 4.1 per cent overlap), all now cancelled.
The quick appraisal document shows that services affected are 11 minor roads; 10 tracks; three fence lines; one tank; three well/bores with Windmill (Deep B, Crabhole W (Abd) and Wolarry B); nine Non-Perennial lakes; one claypan (Wolary); 27 Non-Perennial minor watercourses; and three springs/soaks/rockholes/waterholes.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within E09/1959. Tribunal mapping indicates that there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). The proposed licence will also be subject to three further conditions:
5. The Licensee notifying the holder on any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
· the grant of the Licence; or
· registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or any grazing lease details of the grant of transfer.
7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Conservation of Flora and Fauna Reserve 40628.
In respect to the area designated as CPL 5 Muggon in TENGRAPH the following conditions apply:
8. Prior to any ground-disturbing activity, as defined by the Executive Director, Environment Division, DMP the licensee preparing a detailed program for each phase or proposed exploration for the approval of the Executive Director, Environment Division, DMP. The program to include:
· maps and/or aerial photographs showing all proposed routes, construction and upgrading of tracks, camps, drill sites and any other disturbances;
· the purpose, specifications and life of all proposed disturbances;
· proposals which may disturb any declared rare or geographically restricted flora and fauna; and
· techniques, prescriptions and timetable for the rehabilitation of all proposed disturbances
9. The licensee, at his expense, rehabilitating all areas cleared, explored or otherwise disturbed during the term of the license to the satisfaction of the Executive Director, Environment Division, DMP. Such rehabilitation as is appropriate and may include:
· stockpiling and return of topsoil;
· backfilling all holes, trenches and costeans;
· ripping;
· contouring to the original landform;
· revegetation with seed; and
· capping and backfilling of all drill holes.
10. Prior to the cessation of exploration/prospecting activity the licensee notifying the Environmental Officer, DMP and arranging an inspection as required.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Evidence provided by the native title party in WO2012/1034
The submissions of the native title party include the A. Egan affidavit, the G Egan affidavit and a copy of a tengraph report for E09/980. The A. Egan affidavit and the G. Egan affidavit are annexed to this determination at attachments A and B respectively.
The evidence of Mr Alan Egan and Mr Gavin Egan is uncontested and I accept it. Both Mr Alan Egan and Mr Gavin Egan state that they are members of the Wajarri Yamatji claim group and have authority to speak for the country where the exploration licence is located. I accept that Mr Alan Egan and Mr Gavin Egan have authority to speak on behalf of the native title party.
Evidence provided by the grantee party
The submissions of the grantee party include statements made in response to an explanation from the Government party regarding the information to be provided in an inquiry. The statements are as follows:
Questionnaire, Tenement Applicant E09/1959
Q Particular details about where you want to explore
AAll over the tenement, where previous exploration has taken place as well as any other areas of geological interest.
Q Particular routes to be followed e.g., already established roads, tracks
AThe whole area is accessible by (4wd)vehicle [sic] one way or the other but to prevent damaging the vehicles and a lot of flat tyres the station tracks area used as best as possible
Q Details about how often you will go to these areas
A Totally dependent on the response values of the previous works programs.
Q Details about what exactly you will be doing there
AAs nominated in previous Emails; detailed geological Mapping, Geochemical sampling of various types and airborne surveys.
Q Details about the extent to which your proposed activity will affect any sites.
A No proposed activity to affect any sites that may yet be found and registered.
QA copy of the Aboriginal Heritage Inquiry System report for the tenement area will be included in the information being sent out by this office next week with the preliminary state contentions. Alternatively you can find this information at shall wait for it to be sent out, thank you.
QDetails of any prior exploration activity that you are aware of or disturbance to the ground-photos are a great help
ANo known prior exploration, associated to ground disturbance, has been observed to date. But if we observe some who are we to let know?
Q Details of what you are prepared to do to consult with the traditional owners
AThe traditional owners in application have signed SSHA (showing rates to be paid for services) to sign off on and it would be advisable for them to do so as the other rates around Australia are cheaper and these reduced rates may be requested in the future. The working day of shearing industry commences at 7.30am and finishes at 5.30pm to achieve eight working hours per day. More detail of a day’s work proposed needs to be added to the SSHA
The grantee party has also submitted a significant number of photos of ‘previous activities conducted in the region of E09/1959’ to show the ‘regional terrain’.
Section 237(a) Community and Social Activities
The native title party submits that the Tribunal should have due regard to the earlier decision of Deputy President Franklin in Violet Drury. In that matter, the Tribunal held that the expedited procedure was not attracted on the basis that it had been satisfied that s 237(a) was invoked in the sense that the Tribunal was not satisfied that it was not likely that there would be interference with social and community activities of the native title party should the relevant tenement in that matter have been granted (see Violet Drury at [11]). The native title party does not assert that the Tribunal is bound by the earlier determination however, in carrying out of its functions in a fair, just, economic, informal and prompt way, the Tribunal should be open to rely on previous determinations and adopt findings from them where it is appropriate to do so (see ‘ASJ Resources’).
In accordance with the findings in ASJ Resources the Tribunal in these circumstances, like other tribunals, is free to adopt a flexible approach in considering previous decisions of the Tribunal. In the Violet Drury matter, Deputy President Franklin found that the native title party had established that the people visited the Wiyarli (the area around the Bageradda Ranges) and the proposed area of the tenement when the opportunity arose to camp and hunt and that Mr Whitehurst took younger people there to teach them about country. He also found that they gathered bush food and medicine from the proposed tenement. It was on that basis that Deputy President Franklin found that the expedited procedure was not attracted. The native title party provides in its contentions, a map demonstrating that the tenement concerned in that matter, overlaps the current tenement in the north east corner to the extent of approximately 37.1 per cent.
Gavin Egan tells how the area, the subject of the proposed tenement is an area of importance to the native title party because it offers many opportunities for camping areas largely because of the availability of water throughout the area. He indicates that they camp at Yalamia pool and other areas throughout the area of the proposed tenement (see para 5-6 G. Egan affidavit and A. Egan affidavit at para 16-17). Gavin Egan also deposes the importance of the area for hunting purposes. He indicates that he hunts kangaroo throughout the tenement area, particularly the red kangaroo and goes on to say that it is the home of the red kangaroo in the Murchison area. He tells of how he and his family hunt kangaroo and gather emu eggs and bush medicines (see para 21-23 of G. Egan affidavit). Alan Egan also deposes to the fact that he uses the area around the Yalamia flood lands which runs down to Billilie Lake on the southern part of the tenement where they collect seeds for damper and cooking and go hunting in the area around the lake particularly for kangaroo. It should be noted that according to the map provided to the parties that Yalamia, Billilie Well and Billilie clay plan are to the south and east of the tenement area approximately three to five kilometres from the boundary of the tenement.
In addition to the evidence referred to Gavin Egan gives evidence that he travels to the area with his grandson and camps there with a view to appease the spirits of the kangaroo dreaming. He teaches his grandson about bush medicine and the ways of life in the bush and the way of skinning and cutting a kangaroo correctly. He also gathers materials for the making of boomerangs, clubbing sticks and tapping sticks. He expresses the view that should the tenement be granted, his visits to the area will be restricted, animals will be scared off and it will not be safe to conduct community and social activities in the area (see para 23-30 of G. Egan affidavit). Alan Egan also deposes to the fact that he and his family use the area extensively to collect bush tucker, look after rock holes and develop bush skills (see para 27 – A. Egan affidavit). Further, he indicates that they collect bush medicines, cook kangaroos, teach skills to the children such as how and when you can tell when Emu eggs will be available (see para 28 – A. Egan affidavit). They also collect in the area gagurla (or bush pear), thudnuar (a flat bean on the mulga tree), bogdurda beans, joguda (a little round thing that has prickly points on it that is an edible type of fruit that grows on mulga trees), yams, bimba (which is a type of gum), mulga wood for spears and snake wood for boomerangs (see para 30-31).
When considering s 237(a) of the NTA, the Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and the activities undertaken pursuant to it are likely to interfere with the community and social activities of the native title party in the sense of there being a real risk of interference (Smith at 450 [23]). The notion of the interference involves an evaluative judgement that the future act is likely to be the proximate cause of interference and must be substantial and not trivial in its impact on community and social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on the native title party’s community and social activities such as pastoral or mining activities (Smith at 451-452 [27]).
As the Government party has contended, the great bulk of this tenement area (76.6 per cent) is covered by a pastoral lease (Yallalong PL3114/6867) and there are no aboriginal communities within the area. It has been the subject of an extensive list of previous exploration and mining leases granted over the area.
Having considered all the evidence including that which was referred to in the earlier decision of Deputy President Franklin, it is in my view that in the present circumstances, it is not likely that the grant of the tenement or the exercise of the activities permitted under it are likely to interfere with the community and social activities of the native title party. In my opinion the bulk of the evidence that has been provided by the native title party, establishes that they undertake a significant range of social and community activities in the area including hunting, camping, gathering and teaching of young people about the land and their law. On the other hand most of that activity seems to be focussed on the southern end of the tenement area and particularly focuses on a number of areas including Yalamia Pool and Billilie Lake which are outside the tenement area. The earlier evidence of the Nanda native title party in the decision made by Deputy President Franklin largely referred to the area to the north of the tenement. In my opinion, given the existing restrictions on the conduct of such activities which are presented by the existence of the pastoral lease and the indicated low impact nature of the activities to be undertaken by the native title party and the size of the area, that it is unlikely that the sort of interference contemplated by s 237(a) is likely to occur.
Section 237(b) Site of Particular Significance
The issue the Tribunal is required to determine in relation to s 237(b), is whether there is likely to be (in the sense of a real chance or risk of) interference to sites or areas of particular significance (that is, more than ordinary) to the native title party in accordance with their traditions. The register kept under the Aboriginal Heritage Act 1972 (‘AHA’) shows that there are no sites registered under the AHA within the proposed area but this does not mean that there may not be sites of particular significance to the native title party or in the vicinity of the proposed licence. The register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites whether they area on the register or not.
The evidence of both Alan and Gavin Egan is that there is a site of particular significance to the native title party called Neeramugga located in the north-western section of the tenement area (see para 5-8 – A. Egan affidavit, 8 and 14-18 – G. Egan affidavit). In their submissions at paragraph [33] the native title party assert that this evidence in relation to Neeramugga is supported by the affidavit evidence given in the earlier decision made by Deputy President Franklin and cites reference to paragraphs [9] and [10]. The decision of Deputy President Franklin in the earlier decision matter makes reference to a site known Nyirimuga which is said to be a ‘sacred place to the west of the Badgeradda Range to which the people are not allowed to go’. This would appear to be a reference to the site referred to in the evidence before the Tribunal at the moment as Neeramugga (see Violet Drury at [10]). Alan Egan describes how at the site called Neeramugga, his grandfather had ‘left all of his gear that he used to have and spiritual stuff for us’. It is said to be a site that gives protection to the members of the native title party and only the people who are allowed to go there are those who have had handed down to them a knowledge of the area. Mr Egan indicates that he and some members of his family are allowed to go there, but when they arrive they need to call out to the spirits and speak in their language (see para 5). Alan Egan tells the story of how when you arrive at Neeramugga you can smell the smell of wet kangaroo skin which is an indication that there is ‘something there’ (see para 7). Mr Egan tells a story that the day before he was born, his father shot a kangaroo and on the day he was born a similar mark was discovered on his back. This therefore has meant that the red kangaroo is Mr Egan’s totem and that the Neeramugga is of particular significance to him (see para 8). Mr Egan makes reference to other important sites to the native title party in the area or adjacent to it but does not assert that they are of particular significance. Specifically, he makes reference to Yalamia Pool, Billilie Lake and Wiyarli. The first two of those places are places are outside but adjacent to the tenement (see para 17-19). Mr Egan also makes reference to another site out to the south of the tenement known as Bombas which is a place where a kangaroo was speared and spots of red ochre can be seen as the kangaroo moved from that spot down to Wilgie Mia (see para 20). Mr Egan also refers to the many Birrimurra sites which are located along the Murchison River. These are sites where the serpent lives. Mr Egan does not indicate whether any of these particular sites are within the tenement area or adjacent to it but his reference later in the paragraph to Wiyarli and Yalamia Pool suggest that the areas to which he is referring are outside but adjacent to the tenement in question (see para 21).
The evidence of Gavin Egan in relation to sites of particular significance within the area supports that of Alan Egan. Again, Gavin Egan supports his brother in saying that Neeramugga is a site ‘more significant than other areas or other sites. It is very significant’. He says it is the home of the red kangaroo and the Egan family led by Alan Egan are responsible for the kangaroo in the Murchison area (see para 8). Gavin Egan also attests to the fact that Alan Egan is the man primarily responsible for that site and is head of the Egan family. He also tells of how emotionally attached Alan Egan is to the site and how protective of it he can be (see para 12 and 17). Gavin Egan tells how there are places of ceremonial importance just to the south of the tenement and a little bit to the north but his primary evidence seems to suggest that the site of greatest significance to the native title party within the tenement area is the Neeramugga site (see para 14-18).
There is a reference in Alan Egan’s affidavit to the fact that on the 1 March 2013, he and some other Yamatji staff visited the tenement area with GPS equipment (see para 2). In their submissions, the native title party suggests that the evidence relating to the Neeramugga site being within the tenement area is compelling, given that both deponents travelled to the tenement accompanied by anthropologists and used GPS equipment to verify their location (see para 33). In my reading of the affidavits of Gavin or Alan, neither makes such an assertion. It is probably a reasonable inference to suggest, given what both Mr Egans have said in their affidavit evidence that the GPS readings verified the fact that the site known as Neeramugga was within the tenement area but its exact location has not been identified. However, for the purposes of this decision, and given the tenor of the evidence given by both Mr Egans, and the evidence referred to in the earlier matter, I am prepared to find that Neeramugga is inside the tenement area. I am also prepared to find that it is a site of particular significance to the Wajarri Yamatji native title party, that it is an area which is used for the storage of ceremonial and ritual implements, that it is a secret place that only certain people are allowed to go and it is of very special spiritual significance to the members of the native title party, the Wajarri Yamatji people.
Having come to the view that the Neeramugga site is a site of particular significance to the Wajarri Yamatji native title party, which is located within the tenement area, the next question which needs to be addressed is whether or not the grant of this tenement is likely to lead to the possibility of interference with it.
The Government party submits that in the event that I find that a site of particular significance exists within the area of the tenement (which it does not accept), that interference is not likely because:
The location of the site has been identified and the RSHA which the grantee party will be required to execute, demonstrates and requires a willingness to consult with the native title party, even if the native title party does not accept or agree to enter into the proffered RSHA
The grantee party’s activities will be low impact
There is no evidence that the concerns of Alan Egan at [22]-[25] of his affidavit or Gavin Egan at [9]-[12] of his affidavit will materialise, rather the grantee party’s activities will be ‘minor in respect of ground disturbance and the endorsements and conditions proposed will prevent those concerns from arising’
Prior mineral, exploration and mining activity have occurred on the lands concerned as well as the activities of lease holders and the holders of the special prospecting authority. The activities of the grantee party are unlikely to have any more impact than the impact of those previous and current activities
The protective measures of the AHA, in particular s 18 thereof. The Government party also suggests that the grantee party is now aware of the existence of sites of significance and the site of particular significance to the native title party by virtue of the evidence presented in this matter.
In fact the exact location of the Neeramugga site has not been identified by the native title party. That is of course a decision made by the native title party.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Mailand Parker 31-38 and 40-41). While the Tribunal has usually found the site protective regime based on the AHA as sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel at 81-91). The Tribunal must consider, based on the facts of a particular case and the nature and extent of sites of particular significance, whether the protective regime is sufficient to make it unlikely that there will be interference to sites of particular significance which are found to exist. In Butcher Cherel, the Tribunal found that although there were sites of particular significance in the area of the proposed licence and even in the absence of a RSHA, the AHA protection was sufficient because of the evidence of the intentions of the grantee party to protect any sites of significance and consult the native title party before any ground disturbing work was undertaken. On the other hand there have been decisions of the Tribunal where it has taken the view that the demonstrated intentions of the native title party and its attitude to the native title process has led the Tribunal to come to the view that it may be likely that interference could still occur notwithstanding the protective regimes which had been put in place (see Copley at [44]-[45] and Aruma at [65]).
In this matter, the grantee party’s representative, Mr Ralph McNab, has provided a response to what he has described as a ‘questionnaire’ for native title applicants. He has also provided a significant number of photographs of the area inside the tenement designed to indicate that the area has been largely undamaged by mining activity in the past, although that is not entirely clear as there is no particular commentary on the photographs concerned. The Government party has indicated in its submissions at [18]-[20] that a condition of grant will be imposed on the tenement in the standard terms requiring the grantee party to enter into a RSHA if requested to do so by the native title party. At paragraph [19] of its contentions, the Government party indicates the grantee party has signed a copy of the RSHA on 19 April 2012. However in his response to the questionnaire, Mr McNab has indicated his position in relation to the question ‘Details of what you are prepared to do to consult with traditional owners’. His response is
‘The traditional owners in application [sic] have signed SSHA (showing rates to be paid for services) to sign off on and t would be advisable for them to do so as the other rates around Australia are cheaper and these reduced rates may be requested in the future. The working day of shearing industry commences at 7.30am and finishes at 5.30pm to achieve eight working hours per day. More detail of a day’s work proposed needs to be added to the SSHA.’
It seems to me at the very least that this indicates that Mr McNab on behalf of the grantee party is not satisfied with the current arrangements proposed within the RSHA. It is also notable that Mr McNab has indicated in his response to the questions from the Government party, that he intends to explore ‘all over the tenement, where previous exploration has taken place as well as any other areas of geological interest’. In response to the question ‘Details about the extent to which your proposed activity will affect any sites’, he says ‘No proposed activity to affect any sites that may yet be found and registered’. During the course of the preliminary hearings in this matter, Mr McNab has indicated a level of scepticism concerning the authenticity of the requirements of the expedited procedure in particular and the native title process in general. The Government party has contended that in the absence of evidence to the contrary, the Tribunal will assume that a grantee party will not act in breach of any relevant statute law, regulations, or conditions imposed upon them (see for example Harvey Murray at [56]). In the circumstances however and on the evidence before me, it is my view that there may be significant obstacles for the grantee in carrying out its proposed exploration program in compliance with its obligations under the AHA and under the terms of any RSHA entered into between the parties. I do not suggest that the grantee party has any intention other than to comply with its legal obligations, however in the circumstances it would be difficult for the party to comply with the relevant laws and regulations unless required to consult with the native title party and its representatives. Consequently, I find that without further comprehensive discussion, it is likely that a site of particular significance may be interfered with should this tenement be granted without further negotiation.
Section 237(c) Major Interference with Land or Waters
The Tribunal is required to make an evaluative judgement on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community including the Aboriginal community as well as taking into account the concerns of the native title party (see Little and elsewhere).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular the locality in which the exploration or prospecting will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which could lead members of the Australian community generally to think the exploration or prospecting activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that the prospecting and exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there are exceptions (Champion; Sumner J at [74]-[79] and the cases cited therein). In this matter the native title party has not provided any evidence or contentions in relation to s 237(c) and no contentions were provided by either the grantee party or the Government party in relation to that limb of the section. I have examined the evidence that has been presented to the Tribunal in this matter and it does not appear to me that there is any basis in it to suggest that there is any likelihood that the grant of the proposed licences will create major disturbance to land or create rights which will do so.
Determination
The determination of the Tribunal is that the grant of Exploration licence E09/1959 is an act that does not attract the expedited procedure.
Dan O’Dea
Member
9 August 2013
ANNEXURE A
AFFIDAVIT OF ALAN EGAN
I, Alan Desmond Egan of 18 Dreghorn St Morawa 6623 in the State of Western Australia, affirm as follows:
1.I am a member of the Wajarri Yamatji native title claim group and I have authority on behalf of Wajarri Yamatji Claim Group and my family to speak for the area of country that E09/1959 (the Tenement) is located.
2.I’m familiar with the location and boundaries of the Tenement and I attach a map of it marked ‘AE1’. On Friday 1st March 2013 some other people and I went out to the Tenement with GPS equipment and YMAC staff. We camped on the eastern side of the tenement at a pool and drive through the tenement.
3.It is my personal responsibility to look after the area and this responsibility passed to me through my dad, and it was passed to him through my grandfather, his dad.
4.The responsibility involves looking after the country, looking after the significant sites.
5.There is a significant site within the tenement in the northwest called Neeramuga. This was important for my grandfather as that’s where he left all of his gear that he used to have and spiritual stuff for us. That’s a place where we can go and revive and carry on after we’ve been there. It gives us protection. Only some people are supposed to go there, the ones that have been handed down the, I don’t know what you’d call it, admittance, to that area. I can go there, and some other people in my family. When we go there, we sort of call out and let the spirits know that we are there and speak our language.
6.It is a secret area and it is protected for us. That is where we go and congregate more or less. I go myself mainly. Other people can only go there if accompanied by me or a member of the family.
7.Up at Neeramuga you can smell the wet kangaroo skin. A couple people I know have travelled through there and they notice the smell, the smell here is the ‘boomer’ smell like the big kangaroo. So we get that smell, I have smelt it, my brothers have smelt it, and a few others, a couple of cousins have smelt it as well. But that is only to let everyone know that there is something there.
8.Also where this Neeramuga is, I was born on Muggon station, and my totem is a kangaroo. The day before I was born my dad went out and shot a roo in the back. I was born with this mark on my back and to this day I have the mark, so this is why I was handed down Neeramuga, because that was the kangaroo’s significant site. So i [sic] carry that wound I suppose you would say, from the shot. The red kangaroo that’s my totem. Neeramuga is the site of my Bimara, and the spirit of Neerimuga, this is a powerful spirit that moves between the sites along the story line.
9.The Badgerradda ranges are just east of the tenement they run north-south. And also there is another set of ranges called the Wudderada ranges which is south of the tenement, they run east west.
10.There are places where I can go to because now I am the headman and I can go there and our people can go there as well, but the site at Neeramuga is out of bounds for anybody else unless I’m with them.
11.The other places most of the people can go there.
12.If people were to go to Neeramuga without me they would probably get sick. If a stranger went out there they would get disturbed during the night, they would be disturbed spiritually.
13.There are other sites as well, but Neeramuga that is the most important site.
14.In the middle of the tenement there is a cave and that is full of soot on the roof. It is an old camp that the older people used. An old fireplace was in there and there were artefact scatters around there as well.
15.Further north-east in the middle of the Baddgerada ranges there is a rock standing up in the hills and this is ort of looking out over the land down on the tenement and further to the west. It just looks like a man looking out westwards, the site is not within the tenement but close to it.
16.We camped down on the southern-eastern edge of the tenement. There is a creek that runs through the tenement here, but on one side there’s a pool with really good fresh water, you can drink it, this part of Yalamia pool is within the tenement. This pool is an important watersource for people travelling through the area and it’s a significant site for all Wajarri Yamatji people travelling through there.
17.This pool, which is part of the Yalamia floodlands runs into Billilie Lake down the southern part of the tenement. On the lake, in the good season there’s seed that we use to make little dampers. It is a good food source for cooking. Looking down from the hill where the Wudderada range is, if my ancestors were up there they could see down to the lake, because that is where they did their hunting. Back in those days food was plentiful.
18.Billillie Lake is a hunting area. It is at the south end of the tenement, but part of it is in the Tenement. People go down and get a kangaroo every now and then. This is an important area but not as important as Neeramuga.
19.There is also a site to the southeast, just outside of the tenement called Wiyarli. That’s an old outcamp. When they first started using it it was probably a shepherd’s hut, probably had cattle and sheep and whatever there. I have been here and stayed with other relatives that are associated to there. This is a significant area for us as well because people would travel through there and some of our people were born there. Some of our people are also buried there.
20.There’s a dreaming story about further south of the tenement, there is a pool on the Murchison river called Bompas. The kangaroo was speared north of the pool up in hilly country, he bled his blood drops all the way from there to Wilgie Mia up in the Weld Range. There are spots of red ochre all the way along, on different stations in that area going over to Wilgie Mia.
21.A Bimara is a place where a serpent is. The one that we have got, the one up there, he travels down to the Murchison river on and off. There is a big pool in woolgorong country further south of the tenement called coolaboloo. There is a permanent pool, that is where it is now. He stays because the country, you would have to travel around now, and he is not seen very often now. You can see him in the sky, or in the spring sometimes, he just stays around Wiyarli and the Yalamia pool then he travels down to just have a look around I suppose.
22.I would prefer the exploration companies did not go near those sites, because if they did there’d be hell to pay. They would be damaged. We have to tell them they’re a no go area.
23.If they went out there without us they could go in there and desecrate the sites, they could take stuff away. They might take rocks, artefacts, which they should not do.
24.The have to come to us. If they do not come to us then there would be problems, they could know down trees, damage sites. If they want to go and do this exploring or whatever, they have got to come to us.
25.If they do come to us then we can negotiate, we can tell them where the sites are, we can be there and show them.
26.Myself and other members of the Claim Group and members of my family still go for drives and show the children, the grandkids and teach them about things.
27.We teach them about bushtucker, about watering holes, rockholes, and about how to look for flakes and teach them about the sites, bush skills, as much as we can about our traditional ways.
28.We point out our bush medicines, how to cook the kangaroo, how to put the tail in the ground, how to look for emu eggs, teach them how to track before the nests are opened. There are lots of different skil.ls. An emu when he goes into the nest he or she walks on tippy toes, that is all you see, you don’t see the palm of the foot itself, all you see if three toes and that tells you that you’re getting close to the nest. And there is these caterpillars crawling along one behind the other, that tells us that the emus are laying. And also, in the sky in the milky way we have the emu looking down at us, telling us when there is eggs in the nest and also when after he has got so many eggs the head turns downwards to point the eggs out, or to point out that they have just stopped laying.
29.We still take the kids out to areas around the tenement to teach the kids this stuff and the language that has been passed down to us.
30.Some of the bush tucker we have out in the area of the tenement is Gagurla, that’s the bush pear. Thudnuar – a flat bean on a mulga type of tree. Bogdurda – beans. Joguda – little round thing that has prickly points on it, that is an edible type of fruit that grows on Mulga Trees. There is a special way to cook them. They are only seasonal, like this gagurla (bush pear) it comes out in the first storms so now they would just about be dying off. And further north, there are Yams, quite big they grow kind of similar to a sweet potato but they almost taste like an apple (there are 2 varieties of those – brown and white) and there is Bimba, there is some of it around there but not as much as in other places, that is a gum.
31.We can use the mulga wood to make spears. The snakewood is good to make a boomerang. It is already got the shape of a boomerang you have just got to finish them off.
32.The area of the Tenement is important for doing these things, but not to go and wreck the country. You do not go and just cut all the trees down.
33.We go out when it is cooler and take our grandkids if they are interested. Sometimes they do not want to go, when they get older they want to do their own things. But they are prepared to do it, so we still take them out. My brother takes his out to teach them things as well.
If the exploration companies are out there we will have to keep away from them or not go at all. If they were doing drilling out there, we would not be able to go out there. We would have to come back and explain to the kids what they were drilling for and whatever and we have to wait until they have gone so we can show them places etc. We would not be able to do hunting if they are out there because you never know where anyone is.
ANNEXURE B
AFFIDAVIT OF GAVIN EGAN
I, Gavin Egan of 5B Marri Court Gerladton in the State of Western Australia, being duly sworn make oath and say as follows:
1.I am a member of the Wajarri Yamatji native title claim group. My brother Alan Egan and I have authority to speak for the country where there Exploration Licence 09/1959 (the Tenement) is located on behalf of the Wajarri Yamatji Native Title Party.
2.I’ve been shown maps of the Tenement by the staff at Yamatji Marlpa Aboriginal Corporation and attach a map of it marked ‘GE1’. I have been out on a fieldtrip to the Tenement and I know that I was there via GPS readings. I am aware of the boundaries of the tenement.
3.Along with my brother Alan Egan it is my personal responsibility to speak for this area of country/land and this responsibility passed to me upon the death of my elders, my grandfather and father.
4.It’s not culturally appropriate for me to mention the names of my past relatives, and it so wrong to even ask an indigenous person to come out and name relatives who have passed on.
5.There are sites and areas of particular significance located within the boundaries of the Tenement. I know this because we went out to the Tenement with anthropologists from YMAC and identified some of the sites. Down the bottom side of the Tenement is where a pool called Yalamia Pool runs into, and the outlying areas where it floods out is all part of the Yalamia floodlands and is very significant and this is located within the boundaries of the tenement.
6.The significance of the pool is that it is a camping area that has sustained aboriginal people for many many years, with water, food. All the sites in this area connect together to make the whole of the area significant.
7.Halfway along, in the middle of the Tenement, there are caves which used to be used as a camping area. There’s soot on the roof of the cave so you know that people used that cave for many years.
8.This area is very significant to us but the most significant is the site as the north of the Tenement which is called Neeramuga. I would describe Neeramuga as a site more significant than other areas and other sites. It is very significant. This area/site is the home of the red kangaroo and it is looked after by the members of the kangaroo family which is the Egan family led by Alan Egan. It is Bimara, that is, the resting place in other areas of the serpent but in this case, it’s a caring place for the red kangaroo, the red kangaroo came from there. He went down to the Murchison river where he was speared by the grey kangaroo and then ended up going to Wilgie Mia bleeding along the way. Wilgie Mia is connected to that area because that’s where the Kangaroo’s home is. This is a very sacred site. Not only does it contain ceremonial items, it contains the spirit and the wellbeing of the Egan family, especially Alan who is now the custodian of that area.
9.There are burials within the area, and very close to the Tenement but not within it. To get to the Tenement they might need to disturb some of the burial areas, of course it depends where they are going to try and gain access to the tenement from.
10.We understand this is an exploration licence and it would allow them to go onto the country to perform exploration activities.
11.If they go out there and they disturb the sites without consulting with us first, then it’s a big let down to us as indigenous people.
12.If the exploration activity were to go ahead without that consultation that would that cause interference with those sites and it would be very upsetting for the Egan family, especially Alan. They could interfere with those sites by driving through them, they could interfere by moving the artefacts there in the way of flake scatters etc, these things do mean a lot to us.
13.There are a lot of sites all the way through there. All the little claypans and watering things are the things that sustained people on their journey northwards and southwards. They use them as stopover places as without water people can’t travel anywhere, and the people that first walked all that area, when they first went to ceremonies out in the Gascoyne they walked out there and they used pathways, there were some massive pathways, they used them going up because those were the places that sustained them when they were travelling.
14.There are other ceremonial places just to the south of the Tenement and a little bit to the north, but if you impact on the site in the north of the Tenement then that’s the one that I’m thinking could be very devastating for us, for our family, and mainly Alan. He is our custodian in all of those things.
15.The obligation to protect that area is with all of us, but it’s just that Alan has a bit more of it than the rest of us.
16.If that site were disturbed then Alan could very well lose his life because he would worry himself to death over it, he’d be that upset over it that the worry would get the best of him, and he would most likely lose his life.
17.He was in the other car the other day but I believe when we left that area, Alan was crying, it was affecting him in a big big way.
18.There are secret places within the Tenement, like that Neeramuga and the watercourse to the south of it. It links up from Neeramuga when then top watercourse gets full it fills up the flows down to the next one.
19.There are numerous artefacts and scatters, they are located through all of the watercourses throughout the Tenement there are scatters of flakes etc.
20.Whenever I go to the Tenement I always go to the northern part, I go at least 3 times a year.
21.I hunt kangaroos in and around the Tenement. I go out there and appease the Bimara and ask them for kangaroo. This is a very important area for hunting the kangaroo because this is the home of the red kangaroo in the Murchison area. The Egan family are the keepers of the red kangaroo in the Murchison area and it is the place where the roos sacrificed one of their own, he went down the Murchison river and he ended dying at Wilgie Mia.
22.I gather a lot of Bush tucker there. I hunt roo, I do not hunt emu but I hunt kangaroo. I go there and look for emu eggs. I look for Bimba (a gum) in that area. And there are bush medicines there used for colds and sores, dumbuggu (that is there) and more Guburru (a medicine bush that is there that a lot of people have found to be good for cancer).
23.Members of my family go out there and gather this, other people have their own areas but if they want it from there then we will gladly collect it for them. Some of the elders can’t go out and collect it form their own home lands so I collect it from mine for them.
24.My grandson and I go camping there in the area of the Tenement. Whenever I am in the area I’ll pull up and camp there just to appease the spirits of the kangaroo dreaming there.
25.I’m always there with my eldest grandson, I teach him the bush medicine, the ways of life in the bush, what best to get what not to get, how to find it, and the correct way of the skinning and cutting up of a kangaroo.
26.We practice our culture there and look after the sites within the Tenement.
27.Materials are gathered to make items for display like boomerangs, clubbing sticks, tap sticks.
28.The exploration activities will disturb the exercise of the social and community activities.
29.It will restrict our visits, scare off the animals that we hunt there, it will make it harder for us to get there, they will become no go zones etc.
30.It is not safe to go out there can carry on our community activities if there’s drilling rigs or drilling going on. I would not be able to go out there hunting if they are in the area.
31.The Tenement area is good for social and community activities because of the way the water is held in storage in a lot of the natural reservoirs there.
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